Freedom of the Press

This week, the Associated Press reported that the Department of Justice had seized two months of phone records for its editors and reporters without any prior notification to the news organization, thereby denying it the opportunity to negotiate or challenge the seizure in court.

While it's true that there are complicated issues at stake in balancing the right to privacy and First Amendment protections for the media against the government’s obligation to protect national security, the Attorney General’s office has in place its own guidelines on subpoenas of news media for evidence and testimony – guidelines that they apparently failed to follow in this case. If true, the actions taken by the Department of Justice are beyond the pale of our Constitutional system. The right of all persons to feel secure that their privacy is protected is fundamental to our nation's character; we should pay special heed to that guarantee when it involves the freedom of the press, an essential bulwark of our democracy.

Any government requests for media records should be subject to automatic judicial review, and whatever exceptions to that principle that may exist should be extraordinarily limited in scope. According to reports, neither was true in this instance.

In response to this revelation, the White House has appropriately reiterated its support for more robust shield laws to protect journalists from undue government intrusion. Even without those laws in place, the Department of Justice should have understood that its actions in this instance were a gross violation of important Constitutional principles.